States Have Jailed Hundreds of Women to Protect Fetuses

A new study details an unknown and sordid history: Hundreds of cases of states jailing pregnant women on the grounds that they're endangering a fetus.

The debate over personhood bills in several states (including Oregon) recently led researchers at the National Advocates for Pregnant Women and Fordham University to wonder whether cases exist where authorities have charged pregnant women with violating the rights of their fetus, as if the fetus had the rights of a citizen.

The researchers found not just a handful of these cases but over 400 from 1973 to 2005. Women across the country—though mostly poor, black women in the South—have been arrested or held in a hospital against their will for things like: drinking during pregnancy, smoking marijuana during pregnancy, and refusing prenatal care.

The list of cases includes some insane perversions of justice. In one Florida case, for example, doctors sought a court order to stop a woman who had previously birthed a child via cesarean surgery from having what they considered a dangerous vaginal homebirth. While the woman was in active labor, the local sheriff went to her home, took her into custody, and forced her to a hospital. A judge sided with the doctor, saying she must have a cesarean against her will. In another case, a South Carolina mother served eight years for homicide by child abuse when a jury found her tragic stillbirth was caused by using cocaine during pregnancy. The state Supreme Court eventually overturned the ruling, finding that the decision was made on out-dated science. In one Oregon case, a woman dealing with schizophrenia was forced into the state psychiatric hospital after missing appointments to test for gestational diabetes—the court found missing those appointments showed she was endangering her fetus.

These are all cases that have occurred in the United States without the spate of personhood laws anti-abortion groups have tried to push across the country. The researchers sum up the implications of this history: "Our findings make clear that far more than the right to decide to have an abortion is at stake if such laws pass. All pregnant women, not just those who try to end a pregnancy, will face the possibility of arrest, detention, and forced intervention as well as threats to and actual loss of a wide range of rights associated with constitutional personhood."